SIEMER V OFFICIAL ASSIGNEE & ANOR HC AK CIV-2010-404-1709

SIEMER V OFFICIAL ASSIGNEE & ANOR HC AK CIV-2010-404-1709

The decision of the Official Assignee to refuse assignment was quashed because he committed an error of law by conflating the merits of the proceeding with the plaintiff's prior conduct and giving undue weight to the plaintiff's litigation record; the Assignee's investigatory process (seeking legal advice and consulting the plaintiff) was otherwise adequate so the matter is remitted for reconsideration absent the identified legal error.

Citation
openlaw-b846c690_87f6_4ff3_a35f_36e5ca684414.pdf
Parties
Plaintiff: V R Siemer; First Defendant: Official Assignee; Second Defendant: K Fardell (as executrix/estate)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 March 2013
Procedural Posture
Judicial Review / High Court Judgment (hearing 18 Feb 2013; Judgment Delivered 18 Mar 2013)
Outcome
Judicial review granted; Official Assignee's decision quashed; matter remitted for reconsideration
Legal Topics
Assignment of Proceedings by Official Assignee, Wednesbury Unreasonableness, Natural Justice, Bias, Mistake of Fact, Bad Faith, Frivolous and Vexatious Litigation, Duties of Official Assignee
Insolvency Administrative Law Civil Procedure Professional Negligence Assignment of Proceedings by Official Assignee Wednesbury Unreasonableness Natural Justice Bias +4 more

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Parties

V R Siemer

Plaintiff

Official Assignee

First Defendant

K Fardell (as executrix/estate)

Second Defendant

Procedural Posture

Judicial Review / High Court Judgment (hearing 18 Feb 2013; Judgment Delivered 18 Mar 2013)

Legal Issues

  1. 1 Whether the Official Assignee lawfully refused to assign the bankrupt's proceeding
  2. 2 Whether the decision breached natural justice or involved procedural impropriety including bias or bad faith
  3. 3 Whether the decision was Wednesbury unreasonable

Ratio Decidendi

The decision of the Official Assignee to refuse assignment was quashed because he committed an error of law by conflating the merits of the proceeding with the plaintiff's prior conduct and giving undue weight to the plaintiff's litigation record; the Assignee's investigatory process (seeking legal advice and consulting the plaintiff) was otherwise adequate so the matter is remitted for reconsideration absent the identified legal error.

Court Disposition

Judicial review granted; Official Assignee's decision quashed; matter remitted for reconsideration

Orders

  • Decision of Official Assignee dated 25 August 2009 refusing to assign the proceeding quashed
  • Official Assignee directed to reconsider the assignment decision in light of this judgment and without giving improper weight to the plaintiff's prior litigation conduct